State of New York
Department of State
Committee on Open Government

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the information presented in your correspondence.

Dear Ms. Phillips:

I have received your letter of February 20 and the materials
attached to it. In your capacity as a member of the Board of
Education of the Enlarged City School District of Troy, you have
asked whether, in my view, you have "broken any rules, regulations,
guidelines, etc. by releasing this material [certain documentation
that you attached] to parents and PTA/PTO leaders." You expressed
the opinion that your "position as Board member prevents and
precludes [you] from releasing information received from executive
sessions or information received as confidential", but that "[n]one
of the enclosed memoranda fall under those categories."

In this regard, first, the Committee on Open Government is not
a court and I am not a judge. Although I have reviewed the
documents that you enclosed, I cannot make a judgment or
determination. I believe, however, that with the exception of a
few statements reflective of opinions, the memoranda would be
available to any person in response to a request made under the
Freedom of Information Law.

Second, I am unfamiliar with the rules that might have been
adopted by the Board of Education, and I cannot conjecture as to
whether you may have complied with or broken any such rules. For
instance, I am unaware of the existence of any Board rule or policy
that might deal with unilateral disclosures by Board members or
ethical guidelines relating to disclosure by Board members. While
I cannot advise that the disclosures in question were ethical or
unethical, I do not believe that any statute would have prohibited
you from disclosing the records.

According to your letter, some of the information contained in
the records was reviewed and discussed at meetings of the PTA/PTO
and the Shared Decision Making Committee. Assuming that PTA/PTO
meetings are held on school grounds, any member of the public would
have the right to attend [see Education Law, §414(1)(c)].
Similarly, it has been advised that shared decision making
committees established pursuant to regulations promulgated by the
Commissioner of Education constitute "public bodies" required
to
conduct their meetings in accordance with the Open Meetings Law
(see attached advisory opinion, OML-2456). Therefore, insofar as
the contents of the documentation at issue were effectively
disclosed at meetings open to the public, I do not believe that
there would be any basis for withholding.

As a general matter, the Freedom of Information Law is based
upon a presumption of access. Stated differently, all records of
an agency are available, except to the extent that records or
portions thereof fall within one or more grounds for denial
appearing in §87(2)(a) through (i) of the Law.

The records, as you suggested, consist of intra-agency
materials that fall within the coverage of §87(2)(g). That
provision states that an agency may withhold records that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or
data;

ii. instructions to staff that affect the
public;

iii. final agency policy or determinations;
or

iv. external audits, including but not
limited to audits performed by the comptroller
and the federal government..."

It is noted that the language quoted above contains what in effect
is a double negative. While inter-agency or intra-agency materials
may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that
affect the public, final agency policy or determinations or
external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently,
those portions of inter-agency or intra-agency materials that are
reflective of opinion, advice, recommendation and the like could in
my view be withheld.

From my perspective, the records in question consist in great
measure of factual information, expressions of agency policy or
direction given to staff. To that extent, I believe that they
would be accessible under subparagraphs (i), (ii) or (iii) of
§87(2)(g). As suggested earlier, minor portions might be
characterized as opinions that the District could choose to
withhold.

You also referred to objections concerning the protection of
personal privacy. The issue, in my view, is whether disclosure of
the information sought would constituted an unwarranted invasion of
personal privacy pursuant to §87(2)(b) of the Freedom of
Information Law. Although subjective judgments must often of
necessity be made when questions concerning privacy arise, the
courts have provided substantial direction regarding the privacy of
public employees. It is clear that public employees enjoy a lesser
degree of privacy than others, for it has been found in various
contexts that public employees are required to be more accountable
than others. With regard to records pertaining to public
employees, the courts have found that, as a general rule, records
that are relevant to the performance of a public employee's
official duties are available, for disclosure in such instances
would result in a permissible rather than an unwarranted invasion
of personal privacy [see e.g., Farrell v. Village Board of
Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe,
59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County
of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C.
Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981;
Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Steinmetz
v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ,
Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d 562 (1986)].
Conversely, to the extent that records are irrelevant to the
performance of one's official duties, it has been found that
disclosure would indeed constitute an unwarranted invasion of
personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty.,
NYLJ, Nov. 22, 1977].

As I understand the documentation, references to names involve
public employees in relation to the performance of their official
duties. If that is so, it would appear that disclosure would not
have resulted in an unwarranted invasion of personal privacy.

Lastly, both the Open Meetings Law and the Freedom of
Information Law are permissive. While the Open Meetings Law
authorizes public bodies to conduct executive sessions in
circumstances described in paragraphs (a) through (h) of §105(1),
there is no requirement that an executive session be held even
though a public body has right to do so. Further, the introductory
language of §105(1), which prescribes a procedure that must be
accomplished before an executive session may be held, clearly
indicates that a public body "may" conduct an executive session
only after having completed that procedure. If, for example, a
motion is made to conduct an executive session for a valid reason,
and the motion is not carried, the public body could either discuss
the issue in public, or table the matter for discussion in the
future. Similarly, although the Freedom of Information Law permits
an agency to withhold records in accordance with the grounds for
denial, it has been held by the Court of Appeals that the
exceptions are permissive rather than mandatory, and that an agency
may choose to disclose records even though the authority to
withhold exists [Capital Newspapers v. Burns], 67 NY 2d 562, 567
(1986)].

I am unaware of any statute that would prohibit a Board member
from disclosing the kinds of information at issue. Further, even
when information might have been obtained during an executive
session properly held or from records marked "confidential",
I note
that the term "confidential" in my view has a narrow and
precise
technical meaning. For records or information to be validly
characterized as confidential, I believe that such a claim must be
based upon a statute that specifically confers or requires
confidentiality.

For instance, if a discussion by a board of education concerns
a record pertaining to a particular student (i.e., in the case of
consideration of disciplinary action, an educational program, an
award, etc.), the discussion would have to occur in private and the
record would have to be withheld insofar as public discussion or
disclosure would identify the student. As you may be aware, the
Family Educational Rights and Privacy Act (20 USC §1232g)
generally prohibits an educational agency from disclosing education
records or information derived from those records that are
identifiable to a student, unless the parents of the student
consent to disclosure. In the context of the Open Meetings Law, a
discussion concerning a student would constitute a matter made
confidential by federal law and would be exempted from the coverage
of that statute [see Open Meetings Law, §108(3)]. In the context
of the Freedom of Information Law, an education record would be
specifically exempted from disclosure by statute in accordance with
§87(2)(a). In both contexts, I believe that a board of education,
its members and school district employees would be prohibited from
disclosing, because a statute requires confidentiality. Again,
however, no statute of which I am aware would confer or require
confidentiality with respect to the matters described in your
correspondence.

In a case in which the issue was whether discussions occurring
during an executive session held by a school board could be
considered "privileged", it was held that "there is
no statutory
provision that describes the matter dealt with at such a session as
confidential or which in any way restricts the participants from
disclosing what took place" (Runyon v. Board of Edcuation, West
Hempstead Union Free School District No. 27, Supreme Court, Nassau
County, January 29, 1987).

While there may be no prohibition against disclosure of the
information acquired during executive sessions or records that
could be withheld, the foregoing is not intended to suggest such
disclosures would be uniformly appropriate or ethical. Obviously,
the purpose of an executive session is to enable members of public
bodies to deliberate, to speak freely and to develop strategies in
situations in which some degree of secrecy is permitted.
Similarly, the grounds for withholding records under the Freedom of
Information Law relate in most instances to the ability to prevent
some sort of harm. In both cases, inappropriate disclosures could
work against the interests of a public body as a whole and the
public generally. Further, a unilateral disclosure by a member of
a public body might serve to defeat or circumvent the principles
under which those bodies are intended to operate. Historically, I
believe that public bodies were created to order to reach
collective determinations, determinations that better reflect
various points of view within a community than a single decision
maker could reach alone. Members of boards should not in my
opinion be unanimous in every instance; on the contrary, they
should represent disparate points of view which, when conveyed as
part of a deliberative process, lead to fair and representative
decision making. Nevertheless, notwithstanding distinctions in
points of view, the decision or consensus by the majority of a
public body should in my opinion be recognized and honored by those
members who may dissent. Disclosure made contrary to or in the
absence of consent by the majority could result in unwarranted
invasions of personal privacy, impairment of collective bargaining
negotiations or even interference with criminal or other
investigations. In those kinds of situations, even though there
may be no statute that prohibits disclosure, release of information
could be damaging to individuals and the functioning of government.